Serapia Stephen vs Robert Manyama Magee (PC Civil Appeal No. 155 of 1997) [1999] TZHC 132 (30 November 1999)

.. . IN THE HIGH COURT OF Tf'JnANIA AT DAR ES Sl.LAAM PC. ··,Cit>'IL APPE/-1.L NO., o o • ., ••• o. 155 of 1997 Sl<:;RAPIA STEPHEN ••••• • •••• ., APPELLANT. VBRSUS ROBERT· MANYAMA .!..!. •• ., RB.8PONDENT JUDGMENT ---:-- .'ln..IO'!.:,o. • .:.- This matter originates in the priirary court at Temeke. Robert Manyama Mage~, the respondent herein, was dissa.tisfied with the decision Qf the primary court delivered on 22/11/95. He went to the district court of Temeke on appeal. He presented his memorandum·of appeal on 9/9/96. The respondent Serapia Stephen raised an objection that the nnea 1 .. ws ta.mlel•,b~rred, and asked the court to dismiss it. The objection was overnuled, and after the learned magistrate had dealt with the grounds set out in the memorandum he allowed. the appeal in part. Serapia has come to this Court to challenge that judgment, inter alia; on the ground that· 11 the learned magistrate erred in entcrtai.•t1; ning the appeal which was time- bar:ced • .i There are merits in this ground. In overruling Serapia's objection the learned magistrate stated two reasons 9 namely, that it was improper for a party to an appeel to raise such objection at the time of making his/her submission; and that the court lw.s inherent power under section 95 to refuse to recognize periods of limitationo With respect, these were serious misdirectionso Where an appeal is presented after the expiry of the period of limitation, and there is no application to excuse the delay, and an ex··parte order is made 1Jdmitting such an appeal, the court can go into the question of limitation at the hearing of the appeal. Indeed the court should, as a rule, raise the point suo motuo The inherent power of a court exists only where there is no express provision of law appliceble to the case. Where there is a specific prohibition ,..fa particular act or order, the court cannot do the act or make the order under its· in..."ieren t power so The learned :nagistrate thus went wrong when he purported to exercise his· inherent power as he did •

,. r The appeal is allowed, and the judgment of the district. court is set aside, and the appelle.nt is gran"ted the costs., Delivered. · Appellant present Respondent absent~ figd.. Do Po MAPIGANO JUDGT:: I certify that this is a true copy of the oiginal. J /,. r -/ .FJ;;: